Feds won’t overrule states on marijuana laws

Ed MorrisseyPosted at 12:15 pm on October 19, 2009

In a shocking move, the Obama administration has decided to embrace federalism. Well, not really all that shocking, as the Department of Justice plans to reverse a Bush administration policy of enforcing federal marijuana laws in states that allow for medicinal use of the substance. The decision, to be officially announced later today, will impact fourteen states that allow for the possession and distribution of marijuana under varying levels of medical supervision:

Federal drug agents won’t pursue pot-smoking patients or their sanctioned suppliers in states that allow medical marijuana, under new legal guidelines to be issued Monday by the Obama administration.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state law.

The guidelines to be issued by the department do, however, make it clear that agents will go after people whose marijuana distribution goes beyond what is permitted under state law or use medical marijuana as a cover for other crimes, the officials said.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

If we could count on this as an indicator for a trend towards federalism in the Obama administration, I’d call it the best development since Election Day. Unfortunately, this is as much an aberration in the official approach to federalism as Bush’s insistence on overruling state authorities was to Bush’s overall view on federalism during his term in office, as Michelle reminds us today. It serves as a reminder that Washington DC only discovers federalism when they can either make money off of it or save themselves a headache by invoking it.

Nevertheless, this is still a good development. Not only does this forgo the spending of massive amounts of money in these fourteen states, it serves as an acknowledgment that states have sovereign rights themselves, including the right to make decisions about the legality of intoxicating substances. Unlike the 18th Amendment, which gave the federal government jurisdiction over alcohol use and distribution for a brief period of prohibition, the federal government only has the jurisdiction over marijuana when it moves across state lines or national borders, and its use on federal land.

That acknowledgment may serve us well in other debates, especially on health care. After all, if the Department of Justice now admits that it does not have the authority to override states on marijuana practices, then what authority does it have to force Americans to buy health insurance, through exchanges or anywhere else? Where does Congress derive the authority to demand that states create those exchanges in the first place? It will be interesting indeed to watch the federal government throw people in jail for refusing to buy health insurance while taking a pass on prosecuting marijuana distributors in California and Arizona.

On the point of marijuana, it also holds some promise as the first step in reviewing the war on the herb that costs us billions of dollars and infringes on personal liberties while attempting to protect us from ourselves — and a product less lethal than alcohol. Maybe we can finally have a rational debate on at least this front of the “war on drugs,” which has done more damage to federalism than Democrats or Republicans combined.

Madison Conservative doesn’t share my enthusiasm for this precedent. Be sure to read his take in the Green Room.